Wednesday, May 16, 2012

Last year in People
v. Devivo, 87 AD3d 794, the Third Department ruled that a defendant who
commits a violent felony offense after his conviction for the class B felony
drug offense for which he seeks resentencing is eligible for such relief under
CPL § 440.46. (See our blog
post from August 19th, 2011).
The First Department has now adopted this view in People
v. Cristostomo, NY Slip Op 03364 (1st Dept.). Similarly, in People
v. Myles, 90 AD3d 952 (2nd Dept.) the Second Department
concluded that a defendant who commits a merit time ineligible offense after
the conviction for the B felony drug offense for which he seeks resentencing is
also legally eligible for resentencing.

The rationale for all three decisions is the same. In order for a potential exclusion offense to
preclude resentencing as being an “exclusion offense” it must have occurred prior
to the conviction for the class B felony drug offense. To support their opinions, the First and
Second Departments both cited the language of CPL § 440.46(5) where the term
“exclusion offense” is defined. Both
Courts pointed out that the legislature chose the words “previous felony” when
referring to the potential “exclusion offense” and the words “present felony”
when referring to the B felony drug offense.

Wednesday, May 2, 2012

In People v. Pomales, 940 NYS2d 454 (Bronx Cty.), the
Court, relying on the plain meaning of the amended statute, ruled that
non-incarcerated parolees are eligible for resentencing under CPL § 440.46.[1]

When originally enacted, CPL §
440.46, as part of the 2009 Drug Law Reform Act, permitted any defendant
convicted of a class B felony drug offense serving an indeterminate sentence
with a maximum term of more than three years to apply for resentencing to a
lower determinate sentence, provided that they were in the custody of the
Department of Correctional Services (DOCS).This was understood to mean that a person on parole was not eligible to
apply for resentencing, and only people in prison were so eligible.

Eligibility
seemed to change when CPL § 440.46 was amended in 2011 to reflect the merger of
DOCS and the Division of Parole. The
merger created the Department of Corrections and Community Supervision (DOCCS). As a result, CPL § 440.46(1) was amended to
change the eligibility criteria to “[a]ny person in the custody of the
department of corrections and community supervision…” A parolee would thus seem to qualify since a
parolee would be in the custody of this newly created agency as would a state
prisoner.

In Pomales, the Court
examined whether non-incarcerated individuals on parole should be considered
eligible for resentencing in light of the amendment to CPL § 440.46.Mr. Pomales had been sentenced in 2005 to 2-6
years in prison for the crime of Criminal Sale of a Controlled Substance in the
Third Degree.After serving a portion of
his sentence, Mr. Pomales was released to parole supervision.While on parole, he filed a motion for
resentencing.

The prosecution contended that
there is a distinction between “custody” and “legal custody”, and argued that
parolees are not in the custody of DOCCS.The prosecution essentially equated an individual “in custody” with an
inmate.Rejecting the prosecution’s
argument, the Court pointed out that CPL § 440.46 does not distinguish between
defendants who are incarcerated and those who are on parole, and concluded
that as a result of the merger of the Department of Corrections and the
Division of Parole, and the amendment to the statute, eligibility for
resentencing under CPL § 440.46 has been expanded to include non-incarcerated
parolees.

[1] The
Court of Appeals has already held that prisoners who have been paroled, and
then reincarcerated for violating their parole, are not for that reason barred
from seeking relief under CPL § 440.46. People v. Paulin, 17 NY3d 238. In a companion case, the Court of Appeals also
held that those who apply for resentencing while in prison, but are released
prior to the application being decided, are eligible for resentencing despite
their release. People v. Santiago,
17 NY3d 246. The Court of Appeals
did not address the effect of the amendment to CPL § 440.46.

About CCA

The Center for Community Alternatives (CCA) promotes reintegrative justice and a reduced reliance on incarceration through advocacy, services and public policy in pursuit of civil and human rights. CCA is pursuing the full implementation of the New York Drug Law Reforms through a grant from the Foundation to Promote Open Society.

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ALL DECISIONS WANTED!

Please let us know about ANY decisions, whether reported or unreported, oral or written, by ANY judge in ANY New York jurisdiction regarding Drug Law Reform issues. No DLRA decision is insignificant to us.